Special Issues Surrounding Enhancement Priors
EA V(A) Instructional Issues In General: Again counsel should be on the lookout for “hidden elements” in the current offense. In particular, counsel should consider whether the instructions on the principal offense and any other enhancements (e.g., gun use or GBI) require the jury to make all the necessary findings to characterize the current crime as a “serious felony” (under PC 1192.7(c)) subject to enhancement under PC 667 for prior serious felonies. The instructions should also cover all necessary aspects of the prior offenses, including the required elements of priors (and any prison term and “wash-out” elements (under PC 667.5). (For the special instructional issues posed by Guerrero, see FORECITE EA V(E).)
EA V(B) Proof And Sufficiency Issues: People v. Guerrero (88) 44 C3d 343, 355-56 [243 CR 688], allows the trier of fact to look to ” the entire record of the conviction” (though that concept is still being defined). But, when only the judgment is offered, the least adjudicated elements test remains. “[W]hen the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable ….” (Guerrero at 355.) In other words, when the proof of the priors consists only of the bare judgment, the attorney must ask if there is any way the prior offense (including any enhancement findings in that case) could have been committed without satisfying the terms of the recidivist statute. If so, the enhancement must be reversed (and dismissed) for insufficient proof since the People did not offer sufficient evidence of the facts underlying the prior to bring it within the enhancement statute. (See e.g., People v. Brookins (89) 215 CA3d 1297 [264 CR2d 240] [discussed below].)
In People v. Tenner (93) 6 C4th 559, 567 [24 CR2d 840], the court held that the admission into evidence of an abstract of judgment and prison commitment form, considered in light of the official duty presumption (EC 664) is sufficient to prove that the defendant was delivered to prison and that the sentence was carried out. But, see dissent of Mosk and Kennard reasoning that the majority opinion enlarges the “reach of the official duty presumption beyond the extremely modest evidentiary role it was intended to perform, thereby relieving the prosecutor of the burden of proving an element of the enhancement.” (Tenner 6 C4th at 568.) Hence, use of the presumption in this manner violates the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) and this issue should be preserved for federal court.
EA V(B)(1) When Does An Out Of State Prior Not Qualify In California? People v. Avery (2002) 27 C4th 49 [115 CR2d 403] disapproved People v. Marquez (93) 16 CA4th 115 [20 CR2d 365] and held that the elements of the out-of-state prior do not have to actually match the elements of the California offense, so long as the elements are equivalent.
EA V(C) Threshold Questions: In determining whether there’s any issue going to the sufficiency (or admissibility) of proof of the enhancement, the attorney should ask a series of questions:
EA V(C)(1) Is This An Enhancement Which Requires Any Proof Of Aspects Of The Prior Conviction, Beyond The Bare Fact Of Conviction Under A Particular Substantive Statute? Under PC 667.5 and PC 667.7, out-of state convictions may pose issues regarding whether the out-of-state offenses necessarily includes all the elements of a corresponding California felony. (See further discussion EA V(E).) For in-state convictions, PC 667.5(b) will never pose issues regarding the facts of the underlying prior (though there will frequently be issues of the sufficiency of proof of the prison term and of the five-year “washout” element).
There frequently will be issues under the “serious felony” (PC 667(a) / PC 1192.7(c)) and “habitual offender” (PC 667.7) enhancements, but this depends on the nature of the prior offense. For instance, a prior California robbery will always support a PC 667 enhancement (PC 1192.7(c)(19)) and hence will require no special proof beyond the judgment showing a robbery conviction. But a prior robbery will only support a habitual offender finding (under PC 667.7(a)) if it “involved the use of force or a deadly weapon.” (See discussion of Brookins below.)
If additional facts (beyond the bare conviction) do need to be established, then counsel should scrutinize the records actually offered by the prosecution and determine:
a. If the records are sufficient to prove the additional facts beyond a reasonable doubt (under the traditional appellate standards governing review of fact findings); and
b. If portions of the evidence are arguably inadmissible as not coming within the “record of the conviction” within the meaning of Guerrero.
EA V(D) Illustrative Examples: The following are some examples of priors which won’t pass the least adjudicated elements test unless the “record of conviction” shows additional facts:
EA V(D)(1) PC 667.7 (Habitual Offender): A good illustration of the rigors of the “least adjudicated” analysis is People v. Brookins (89) 215 CA3d 1297 [264 CR 240]. A robbery with use of a firearm (PC 12022.5) does not necessarily qualify as a robbery with use of a “deadly weapon” (as required under PC 667.7(a)) since there are ways of satisfying PC 12022.5 which do not require a true “deadly weapon” (such as where robber points an unloaded gun at victim). Hence, exhibits showing only robbery conviction and PC 12022.5 finding were insufficient as a matter of law to support habitual offender finding. (But demonstrating the interaction between this rule and Guerrero, see discussion below of People v. Skeirik (91) 229 CA3d 444, 460-65 [280 CR 175] [decided by same court].)
Since PC 667.7 allegations aren’t very common, the specific issue in Brookins won’t arise often. But Brookins demonstrates the type of analysis which should be applied any time the enhancement statute adds qualifiers or otherwise diverges from the statute defining the prior offense.
EA V(D)(2) Commonly Litigated “Serious Felony” Issues (PC 667): An ordinary ADW (PC 245(a)(1) or PC 245(a)(2)) is not sufficient to support a PC 667 enhancement, since it’s not listed in PC 1192.7(c)’s catalogue of “serious felonies.” (Cf. People v. Equarte (86) 42 C3d 456 [229 CR 116].) Most commonly, the prosecution will attempt to show personal deadly weapon use (PC 1192.7(c)(23), personal use of a firearm, or personal infliction of GBI (PC 1192.7(c)(8)) to bring a current or prior 245 conviction within the serious felony definition. (The latter two possibilities will ordinarily be reflected in PC 12022.5 or PC 12022.7 findings (except for priors predating those statutes) and may be less likely to present appellate issues. However, for dual use reasons, a PC 245 conviction generally won’t have a 12022(b) enhancement finding; hence, the question of whether the defendant personally used a deadly weapon in the assault will frequently pose Guerrero-type issues of looking beyond the judgment of conviction.)
Until 1983, first-degree burglary only covered nighttime entries. Hence, a second-degree burglary before 1983 could be either residential or commercial. Hence, Alfaro, Guerrero and many of the other cases in this field have involved the permissible means of proving that a prior second-degree burglary was actually a burglary of “an inhabited dwelling house, etc.” under PC 1192.7(c)(18).
Recent legislative tinkering with the breadth of the first-degree burglary statute has given rise to a new potential issue–the apparent insufficiency of recent first-degree burglary convictions. A judgment showing only a first-degree burglary after Jan. 1, 1990, should no longer be sufficient for a 667 enhancement. Effective in 1990, the first-degree burglary statute was amended to include “a vessel … which is inhabited and designed for habitation.” (PC 460(a)) Last year the Legislature added an additional gloss along these lines (eff. Jan. 1992) to include a “floating home.” However, the Legislature has made no corresponding changes in the burglary provision of PC 1192.7(c), which is the predicate for a PC 667 enhancement. Only a burglary of “an inhabited dwelling house, or trailer coach …, or inhabited portion of any other building” qualifies as a serious felony for enhancement purposes. (PC 1192.7(c)(18).)
Since this mismatch has largely gone unnoticed, prosecutors and courts are likely to assume that a conviction of first-degree burglary is all that’s necessary to show a prior residential burglary. But, using the type of rigorous analysis exemplified by Brookins, a 667 first-degree burglary prior resting only on an abstract of judgment (or other documents not showing the nature of the burglary) should be vulnerable on insufficiency of evidence grounds: As with the PC 12022.5 finding in Brookins, a first-degree burglary conviction based on conduct after Jan. 1, 1990, does not necessarily involve a structure listed in PC 1192.7(c)(18). It could involve a burglary of an inhabited “vessel” or (for 1992 convictions and later) a “floating home.”
EA V(D)(3) Probation Ineligibility For Drug Priors: Probation ineligibility for a prior drug possession or sale. (HS 11370) is another example of a mismatch between the enhancement statutes and the statutes defining substantive offenses. For purposes of HS 11370, the current offense is defined in terms of the statute violated (HS 11370(a)). But the prior offense is defined in terms of the proscribed substance involved (HS 11370(c)(1)). HS 11370(c)’s list of substances doesn’t match those in the principal controlled substances offenses: possession (HS 11350), possession for sale (HS 11351), sale or transport (HS 11352). HS 11350, HS 11351, and HS 11352 all include the controlled substance listed in HS 11055(g) (the hallucinogen “dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule …”). Hence, a prior HS 11350, HS 11351, or HS 11352 judgment which doesn’t indicate the nature of the substance should be insufficient proof of a HS 11370 probation ineligibility allegation. (E.g., an abstract of judgment which refers to the statute by number and describes the offense generally as possession or sale of a “controlled substance” or “narcotics.”) (The three-year enhancement for specified drug priors is better crafted; it refers to both current and prior offenses by statute and avoids the hazards of incompletely cross-referencing particular substances. (See HS 11370.2).)
EA V(E) Guerrero Evidentiary Issues: Assuming some other fact must be proven (e.g., residential burglary, personal weapon use, etc.), what documents are competent proof under Guerrero? (First, of course, there must be a clear record as to what documents or other evidence are offered for purposes of the trial or bifurcated trial on priors. (See People v. Jones (88) 203 CA3d 456, 460, n 6 [249 CR 840] [insufficient proof of prior prison term during trial of prior, though records showing prison term had been introduced at preliminary hearing].) Trial counsel should object to requests that the trial court to judicial notice of entire court files in prior cases. Ideally, the specific documents on which the prosecution is relying should be introduced as exhibits in the current case, so that they may later be incorporated into the appellate record, as required by recent amendments to the appellate rules. (See Cal. Rules of Court, rule 33(a)(1)(m) [adding proof of priors to the definition of the “normal” appellate record].) If the trial court still insists on judicially noticing other files, counsel should ask the prosecutor and court identify on the record each specific document in the prior court file which is being offered or considered as proof of the enhancement allegation.) Most of the published case law has taken a very expansive view of Guerrero’s authorization for consideration of the entire record of conviction. Almost everything has been found to come within the “record of conviction,” at least by some court. However, despite the adverse opinions, many of these issues are not yet definitively resolved. Some types of prior documents would likely constitute satisfactory proof under any reading of Guerrero. However, others involve such serious reliability questions that the arguments should not be lightly abandoned. The following list represents a “continuum” of types of proof for Guerrero purposes — ranging from the strongest proof (i.e., least likely to spawn a briefable issue) to the least reliable types of evidence (i.e., most hotly contested areas).
1. A plea transcript or plea waiver form in which the defendant explicitly admits the relevant fact (e.g., burglary of a residence, personal weapon use, etc.). (E.g., People v. Abarca (91) 233 CA3d 1347 [285 CR 213]; People v. Smith (88) 206 CA3d 340, 345-46 [253 CR 522].)
2. Considering the plea transcript or waiver form in conjunction with the accusatory pleading (e.g., a plea which (arguably) incorporates the information, such as “burglary, as charged in Count 1”). (E.g., People v. Tuggle (91) 232 CA3d 147, 154 [283 CR 422].)
3. Considering the accusatory pleading in conjunction with minutes of the plea, where minutes purportedly incorporate the accusatory pleading by reference. (E.g., People v. Harrell (89) 207 CA3d 1439, 1444 [255 CR 750].) (This is an especially unreliable practice though no opinion acknowledges it. Whether minutes describe a plea as to “burglary” or as to “burglary as charged in Count 1” has more to do with the practices of that clerk than with the actual terms of the plea.)
4. Considering the accusatory pleading in conjunction with the plea (or a jury verdict) where the plea or verdict form does not specifically incorporate the accusatory pleading by reference. (See e.g., People v. Johnson (90) 217 CA3d 978, 985 [266 CR2d 221]; People v. Skeirik (91) 229 CA3d 444, 464-65 [280 CR 175] and dissenting opn.; see also People v. Mendias (93) 17 CA4th 195 [21 CR2d 159].) (The theory is that, unless the information is explicitly amended, a guilty plea necessarily admits the count as charged. (See Mendias.) The Skeirik majority applied a similar rationale to a jury verdict, declaring that it represented a conviction of the count as charged. As the Skeirik dissent pointed out, the prior jury was probably not even instructed in the language of the information since it contained superfluous allegations not necessary to a conviction of the charged offense.)
5. Preliminary hearing transcript. (See People v. Castellanos (90) 219 CA3d 1163 [269 CR 93]; see also People v. Goodner (90) 226 CA3d 609 [276 CR 542].) Though not reflected in the currently published case law, some courts have found prelim transcripts inadmissible, as hearsay not coming within any exception. Also, arguably it’s one thing where the preliminary hearing transcript was explicitly considered as the factual basis for the plea, but that transcript shouldn’t be considered at all for a case which went to trial. Significantly, both Goodner and Castellano involved prior guilty pleas. The appellate courts rationalized consideration of a preliminary hearing transcript on the theory it was a record underlying and “explaining” the defendant’s plea and admission of the crime.
6. Probation report. This is the most unreliable of all since it’s usually based on several levels of hearsay. (See People v. Williams (90) 222 CA3d 911, 917-18 [272 CR 212]; but cf. People v. McDade (91) 230 CA3d 118, 128 [280 CR 912].) But apparently it’s permissible to consider the defendant’s own admissions recounted in a probation report. (People v. Goodner (90) 226 CA3d 609, 615-16 [276 CR 542]; People v. Garcia (89) 216 CA3d 233, 237 [264 CR 662].) (Counsel should be careful to distinguish between a probation report’s recitation of a defendant’s written or oral statement to the probation officer and a report’s second-hand summary of the facts of the case, including admissions the defendant supposedly made to the police or other witnesses. A report’s inclusion of “admissions” in the latter category poses the same problems of multiple levels of hearsay addressed in the Williams opinion; see generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].)
7. Documents falling outside the “record of conviction” by any definition. (E.g., People v. Mathews (91) 229 CA3d 930 [280 CR 134] [rap sheets]; People v. Rhoden (89) 216 CA3d 1242, 1257 [265 CR2d 355] [“postconviction report prepared internally by the prison” for intake and classification purposes].)
EA V(F) Guerrero Instructions: Though Guerrero has spawned considerable litigation over the admissibility and sufficiency of various forms of documentation from the prior cases, the published case law provides surprisingly little guidance on the instructional implications of Guerrero. By its terms, Guerrero contemplates that the fact-finder — hence, the jury unless there has been a waiver — will review the “record of conviction” and make the necessary determinations about the facts underlying the prior conviction. Yet CALJIC’s instructions on priors generally only require the jury to determine that the defendant suffered a conviction of a certain offense on the date specified. Consequently, those instructions are inadequate for the very common situation where the enhancing allegations requires the jury to make an additional findings over and above the statutory elements of the prior convictions. Hence, delivery of the standard instructions effectively deprives the defendant of his right to jury determination of every element of the enhancing allegation.
FORECITE has proposed instructions dealing with some of the most common Guerrero-type issues (e.g., residential burglary, personal use of a deadly weapon or firearm). (See FORECITE F 17.25, et seq.) Counsel must determine on a case-by-case basis whether additional instructions are necessary to pinpoint any differences between the elements of the prior conviction and the elements required for a finding on the enhancement.
Instructions may also be useful to guide the jury’s consideration of some of the less reliable documents often introduced as proof of priors (e.g., informations containing superfluous allegations). Ideally, of course, such documents should be excluded. However, as reflecting in the preceding sub§, the case law in this area takes a very expansive view of the “record of conviction.” Assuming the court overrules counsel’s objection to a particular record, counsel should consider fashioning an appropriate jury instruction. Again, FORECITE has proposed several such instructions; however, these are not exhaustive.
EA V(G) Out-of-State Priors: ALERT: The California Supreme Court has overruled People v. Crowson (83) 33 C3d 623, 630-35 [190 CR 165]. Now, the determination of whether an out-of-state felony is equivalent to a California felony is now the same as that for determining the same question with regard to PC 667(a) prior-serious-felony enhancements, which allows the trier of fact to look to the record of conviction in making the determination. (People v. Riel (2000) 22 C4th 1153, 1203-1205 [96 CR2d 1].)
Under People v. Crowson (83) 33 C3d 623, 630-35 [190 CR 165], an out-of-state prior could only be used as a “serious felony” enhancement (under PC 667) “when the elements of the foreign crime … include all elements” of a serious felony under California law. Thus Crowson mandated review of out-of-state (“foreign”) convictions under a very strict “least adjudicated elements” test in which the California court essentially confined its review to the elements of the foreign offense under the other jurisdiction’s statute and case law.
However in People v. Myers (93) 5 C4th 1193 [22 CR2d 911], the court held that Guerrero overruled Crowson (just as it overruled the parallel Alfaro (People v. Alfaro (86) 42 C3d 627, 629-36 [230 CR 129]) rule barring courts from looking “behind” the judgment of a California prior.) (See also People v. Johnson (91) 233 CA3d 1541, 1546-48 [285 CR 394].)
Note that Myers is applicable to PC 667 priors but not to PC 667.5 or PC 667.7 priors. These statutes expressly require identity of elements. (PC 667.5(f); PC 667.7(a).)
EA V(H) Prison Term Issues: The proof of a prior prison term (under PC 667.5(b) usually consists of a certified packet of prison documents from the Department of Corrections, including both the abstract of judgment and internal prison documents showing the defendant’s service and completion of the prison term, including the dates of parole release and any subsequent parole revocations. (PC 969b.) There was a longstanding split of authority regarding whether an abstract of judgment showing a prison commitment is sufficient by itself to prove service and completion of a prison term, even where no prison documents are offered. (Compare People v. Jones (88) 203 CA3d 456, 459-60 [249 CR 840]; People v. Green (82) 134 CA3d 587 [184 CR 652] [abstract held insufficient], with People v. Crockett (90) 222 CA3d 258, 263-65 [271 CR 500]; People v. Castillo (90) 217 CA3d 1020, 1024 [266 CR 271]; People v. Elmore (90) 225 CA3d 953, 958-60 [275 CR 315] [abstract sufficient].)
However, in People v. Tenner (93) 6 C4th 559, 567 [24 CR2d 840], the court held that the admission into evidence of an abstract of judgment and prison commitment form, considered in light of the official duty presumption (EC 664) is sufficient to prove that the defendant was delivered to prison and that the sentence was carried out. But, see dissent of Mosk and Kennard reasoning that the majority opinion enlarges the “reach of the official duty presumption beyond the extremely modest evidentiary role it was intended to perform, thereby relieving the prosecutor of the burden of proving an element of the enhancement.” (Tenner 6 C4th at 568.) Hence, use of the presumption in this manner violates the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) and this issue should be preserved for federal court.
The “wash-out” elements of the prison term enhancements may also pose sufficiency of evidence questions. (See People v. Maki (84) 161 CA3d 697, 700 [207 CR 777] [disapproved on a different, 667.5(b) related ground]; People v. Prather (90) 50 C3d 428, 439 [123 CR2d 348].) (In addition to the one-year enhancement under PC 667.5(b), some other enhancement statutes also have “wash-out” provisions. (E.g., PC 667.5(a), PC 667.6(a), PC 667.7(b).)
The prior prison term enhancement (PC 667.5(b)) applies even when portion of prior term served in CRC. (See (People v. Valdez (94) 24 CA4th 238, 244 [30 CR2d 102].)
EA V(I) Timing Issues: Under PC 667, the conviction of the prior offense must precede the commission of the current offense. (People v. Rojas (88) 206 CA3d 795, 800-02 [253 CR 786].) But, the plea or verdict of guilt constitutes the prior conviction. It’s not necessary that the prior judgment precede commission of the current offense. (People v. Johnson (89) 210 CA3d 316, 324-25 [253 CR 786].) (See also People v. Halsey (93) 21 CA4th 325, 328 [26 CR2d 701] [“prior felony conviction” for purpose of impeachment means conviction suffered before trial without regard to the date of the offense].) (See also FORECITE F 17.25 n7.)
EA V(J) Proof That Charges Were “Brought And Tried Separately”: People v. Wiley (95) 9 C4th 580, 589-92 [38 CR2d 347] held that there is no federal constitutional right to have the jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement. However, California statutory law requires the jury to determine the truth of such prior conviction allegations. But the “brought and tried separately” requirement is a matter for determination by the trial court, not the jury. (Wiley 9 C4th at 592.) Further, the prosecution need not present evidence that separate complaints were filed in municipal court even though the defendant can, on habeas corpus, present evidence that the prosecutions were initiated by a single complaint. (Wiley 9 C4th at 593.)
EA V(K) Distinction Between Legal and Factual Issues: The issue of whether the “brought and tried” separately requirement of PC 667 is a factual element for the jury or a legal question for the court was resolved in People v. Wiley (95) 9 C4th 580, 589-92 [38 CR2d 347]. (See also, People v. Winslow (95) 40 CA4th 680 [46 CR2d 901]; FORECITE EA V(J), above.)
EA V(L) Standard Of Prejudice Re: Instructional Errors On Sentencing Factors.
(1) Enhancements: People v. Wims (95) 10 C4th 293 [41 CR2d 241], held that the failure to instruct upon an element of an enhancement does not violate the federal constitution. (See also, People v. Winslow (95) 40 CA4th 680 [46 CR2d 901].) [A copy of the briefing in Wims is available to FORECITE subscribers. Ask for Brief Bank # B-611.]
However, Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] and Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215] make it clear that Justice Kennard’s dissent in Wims (10 C4th at 320-29) is the correct approach. In Jones, the court concluded that “diminishment of the jury’s significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies, to raise a genuine Sixth Amendment issue not yet settled.” (119 SCt at 1226.) Accordingly, the court concluded that it “would raise serious constitutional questions” to construe a sentencing enhancement which significantly raises the sentencing range to which the defendant is exposed without requiring the necessary elements of the enhancement to be found beyond a reasonable doubt by a jury. (119 SCt at 1228.) Apprendi expressly held, under the same analysis, that the failure to provide a jury trial on an enhancement that increases the potential penalty is federal constitutional error. (Apprendi, 120 SCt 2365-66; see also U.S. v. Nordby (9th Cir. 2000) 225 F3d 1053, 1059 [quantity of marijuana used for sentencing purposes is fact that must be submitted to jury and found beyond a reasonable doubt]; but see Harris v. U.S. (2002) 536 US 545 [122 SCt 2406; 153 LEd2d 524] [enhancement fact which increases the minimum term is not subject to Apprendi].)
See discussion of People v. Sengpadychith (2001) 26 C4th 316, 325-326 [109 CR2d 851] at FORECITE F 6.50c
NOTE: Potential Expansion Of Apprendi Reasoning. See FORECITE 8.67 n2, NOTE.
(2) Prior Convictions: In light of Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531], it may be argued that federal constitutional principles apply to prior convictions. (See FORECITE PG VII(C)(32).)
In the absence of applicable federal constitutional provisions, improper instruction on prior convictions may have to be analyzed under the state’s Watson (People v. Watson (56) 46 C2d 818 [299 P2d 243] standard. (See People v. Wims (95) 10 C4th 293, 315 [41 CR2d 241]; People v. Winslow (95) 40 CA4th 680, 688 [46 CR2d 901].)
However, regardless of what standard is used, if the prior conviction is entirely removed from the jury’s consideration, reversal per se is the appropriate remedy. For example, in People v. Hale REV GTD/DISD/DEPUB (99) 70 CA4th 992 [83 CR2d 125] the trial court instructed the jury that:
“[T]he Florida statute under which [Hale] was convicted is as a matter of law sufficiently similar to the statute in California defining the crime of assault with a deadly weapon.” (70 CA4th at 1004.) In so instructing the jury, the court directed a verdict on the fact of whether or not a conviction had occurred by stating to the jury that the defendant “was convicted….”
The Court of Appeal held this to be reversible error per se. “The instructions directed a true finding on the prior conviction allegations, and left no issue for the jury to decide. Under these circumstances, the instructional error is a reversible miscarriage of justice. [Citation.] As the court stated in Sullivan v. Louisiana (93) 508 US 275, 277 [124 LEd2d 182; 113 SCt 2078], ‘although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence.'” (99 DAR at 3594.) “An instructional error that, as here, is equivalent to removing the entire prior conviction allegation from the jury is a structural rather than a trial error and is reversible as a miscarriage of justice even though there is no California or federal constitutional right to a jury trial on the issue. [Citation.]” (Ibid.)
[See Brief Bank # B-811 for additional briefing on this issue.]
EA V(M) Enhancement Provisions Inapplicable To Attempts Absent Express Statutory Language: When a sentencing enhancement statute refers to prior convictions for specified offenses, the statute will be held inapplicable to an attempt to commit those offenses absent express statutory language making them so applicable. (People v. Finley (94) 26 CA4th 454, 459 [31 CR2d 288] and cases cited therein.)
EA V(N) Use Of Prior Which Is Element Of The Offense To Enhance Per PC 667.5(b): People v. Coronado (95) 12 C4th 145 [48 CR2d 77] held that the same prior which serves to elevate driving under the influence from a misdemeanor to a felony (VC 23550 (former VC 23175)) can also be used to enhance the resulting sentence under PC 667.5(b). People v. Baird (95) 12 C4th 126, 128 [48 CR2d 65] held that the same prior conviction which serves as an element of being an ex-felon with a firearm (PC 12021) may also be used as the basis for a sentence enhancement for service of a prior prison term pursuant to PC 667.5(b).
EA V(O) Application Of “Temporary Safety” Rule To Enhancements: See F 8.21.1 n4.